Archive for September, 2009

Your Car Insurance

September 29, 2009


Benson,, Plaintiffs v. All-Hands Insurance Co., Defendant.

JUSTICE HEMLOCK delivered the opinion of the Court.

In what turned out not to be a very good idea, Mark Benson decided to go have a drink with his friend Bill Edmunson.  Driving in Benson’s car, they headed to Angelino’s bar, about ten miles south of Troutsville, New Mexico, the small town in which they lived.

truchaslgThey had several beers and then several more.  When the time came to leave, both were desperately drunk.  Somehow, in their alcohol-induced stupor, they decided that Edmunson was in better shape to drive, so Benson gave him the keys to his car and sat in the front passenger seat.

About three miles up the road, Edmunson drove Benson’s car into a stately — and innocent — Ponderosa Pine tree, causing massive damage to the car and personal injuries to both its drunken inhabitants. Benson’s injuries were minor, but Edmunson’s were significant.  Nothing in the record before us discloses what happened to the tree, but trees lack standing to sue, so that doesn’t matter.  See Sierra Club v. Morton, 405 U.S. 727 (1972), Douglas, J., dissenting at 741 et seq.

Benson had no car insurance.  Edmunson did, but they were not in Edmunson’s car; they were in Benson’s.  All-Hands Insurance Corporation was Edmunson’s insurer.  He also had uninsured motorist coverage as a part of that All-Hands policy. Benson, the one with no insurance, sued All-Hands for his injuries and the damage to his car.  Edmunson piled on, suing All-Hands for his injuries.  And they sued each other too.

Confronted with two drunks, both demanding money from it, the insurance company balked. The law required Benson to have insurance on his car and he didn’t.  Edmunson was also guilty.  He drove an uninsured car.  (The learned trial judge was absolutely right to ignore his pleas that he didn’t know that the car was uninsured.  The statute is clear: “No person shall drive an uninsured motor vehicle.”  Ignorance is no excuse.)

The trial judge agreed with All-Hands and dismissed the claims against it, leaving the two impecunious drunks to duke it out alone. This appeal followed.

We begin with the scofflaw Benson; required by state law to have insurance, he had none. But that doesn’t answer the question before us: Can he recover for his injuries from Edmunson’s insurance company?  Edmunson complied with the law and bought insurance.  That insurance policy covered Edmonson from any liability he might have to other people.  Benson is such a person under Edmunson’s policy and, if Edmunson caused his damages, he can recover from All-Hands.

So Benson can recover his minor damages from Edmunson and All-Hands has to pay.  What about Edmunson?  Can he recover for his significant injuries?


Edmunson’s policy insured anyone to whom he might become liable.  But Edmunson can’t be liable to himself for any number of reasons, not the least of which is that, if he sued himself, the case caption would be Edmunson v. Edmunson and lawyers would assume it was a divorce case and not read our opinion and what good are our opinions if nobody reads them? See generally,  Winchester, “Freedom of Speech, Corporations, and Cats.”

Edmunson’s insurance policy does not protect him from his own negligence, it only protects others from his negligence. Any other outcome would allow Edmunson to sue himself and he can’t do that.  This court does not rewrite contracts and this insurance contract says that Edmunson is not insured against himself.

Expecting that ruling, Edmunson has another argument in his quiver: If he isn’t insured under his primary policy, that means he is “uninsured” and can therefore recover from his “Uninsured Motorist” coverage!  That argument fares as well as the olive in my martini will this evening.

New Mexico, Edmunson says, has a strong public policy underlying its requirement that everybody ought to have coverage against uninsured drivers.  He has the gall to quote our own words to us:

new_mexico_7In New Mexico, it is statutorily mandated that insurance companies include in     automobile policies uninsured coverage. . . . See § 66-5-301(A), (C). This requirement embodies a strong public policy “to expand insurance coverage and to protect individual members of the public against the hazard of culpable uninsured motorists.” See Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990).

Well.  It is true that Edmunson was uninsured against his own bad driving but that is his fault, no one else’s.  We presume that All-Hands would have sold him insurance against himself had he offered to pay for it. (In states with “no-fault” auto insurance laws, All-Hands sells exactly that kind of policy called, “Personal Injury Protection.”) Edmunson cannot be heard to complain about the law in New Mexico.  If he doesn’t like it here, he can move.  We don’t care.

Besides, All-Hands is a corporation and Mr. Edmunson is merely a natural person.  Corporations are creatures of the law.  We must treat them every bit as well — if not better —  as we treat real persons. Mr. Edmunson is one of God’s creatures and we leave it to God to decide what to do with him.  All-Hands Corporation is one of our creations and we take care of our own.  Mr. Edmunson cannot recover anything from All-Hands even though he’s the one who paid for the insurance and complied with the law.
We know that the laity may grumble about this result, thinking it unfair.  After all, we are punishing Edmunson, who obeyed the law and rewarding the scofflaw Benson, who didn’t. But the law follows logic where ever it leads.  Justice Holmes twice wrote that the life of the law has not been logic but experience.  Balderdash!  (Justice Holmes is overrated anyway.  Wrong about logic, he was also wrong about many other things.  For examples see, Buck v. Bell (mandatory sterilization),  Adkins v. Childrens’ Hospital (women), Schenk v. U.S. (arson), and especially wrong about corporations and illegal monopolization, American Banana Co. v. United Fruit.)

The law and logic of this case flow on like the Mississippi in full flood, inexorable, irresistible, but not always benignant, and we go where it takes us.


The persons (natural and unnatural) portrayed in this fake judicial opinion are fictitious.  Any resemblance between them and any living person is coincidental.  The law described in the opinion may not be the law in your state, however, if you think you are covered by your own insurance policy for your own negligent driving, go read your policy and think again.


William Safire

September 27, 2009
William Safire by George Tames/The New York Times

William Safire by George Tames/The New York Times

Some routines are sacrosanct.  When the Sunday New York Times arrives in our house, I pull out the Sunday Magazine section, turn to the “On Language” page and read William Safire’s latest language column.  I felt a twinge of anxiety this morning when I saw that Jack Rosenthal was pinch-hitting for Mr. Safire who, “. . . is on hiatus for a few weeks.”  This was the second week in a row that he was missing in action.

And now comes the news that Mr. Safire is on more than a hiatus: He has died of pancreatic cancer.

While I seldom agreed with him about anything political, I loved his his writing and I especially loved his writing about language.  Funny, witty, and right, he entertained as he taught.  More than once I wished to have him as my editor. How could you not love a man who wrote a book about common usage mistakes and called it, Fumblerules?  My favorite of his rules? “No sentence fragments.”

But today, read him rather than me.  Here is his last op-ed column entitled “Never Retire.”  on the same day, he also published a column on how to read a column.  And the last of his language columns, “Bending the Curve.”  And here are more of his columns.

And read the witty, respectful obituary in the Times.

You can also read the Washington Post’s obit and the one at the Christian Science Monitor.

Presidential Autographs

September 23, 2009

Leonard Lyons of the New York Post wrote President Kennedy a note in 1961, telling him how much presidential signatures were selling for.  Back then George Washington’s brought the most money, $175; followed by Franklin D. Roosevelt’s and President Kennedy’s at $75; Teddy Roosevelt’s at $67.50; and Ulysses S. Grant’s at $55.  Here from a marvelous blog called Letters of Note is Kennedy’s — unsigned — response:


When I Die

September 20, 2009

All along the road we come and then we go, each trying to do good along the way. Most of us have less impact than we planned, back in our idealistic youth.  For the generation that both fought and ended the Vietnam War, the crowning achievement may have been fighting and ending that war. After all, since then we haven’t even managed to legalize marijuana, let alone end war, racism, and poverty.

Nevertheless, some of us kept right on trying, sometimes inspired by three of our elders, Peter, Paul, and Mary.  Not resting on their laurels and royalties, they kept on performing timely new folk music, often of their own creation.  And getting tossed in jail from time to time for one protest or another.

Now comes the news that Mary Travers has gone.  We pause to remember before we carry on.

Will It Play in Peoria?

September 15, 2009
Peoria City Hall

Peoria City Hall

Joseph Thomas got arrested and jailed in Peoria, Illinois, for not paying nine parking tickets. Only Joseph Thomas had no unpaid parking tickets; the man who did was Joshua Thomas. The police arrested the wrong man.

Worse, Peoria had a “no-arrest” policy for unpaid parking tickets, so by arresting the completely innocent Joseph, the police doubled the wrongs he suffered: They arrested the wrong man and did so in violation of their own no-arrest policy.

Joseph sued, alleging violations of his 4th Amendment right not to be wrongfully arrested.  (That part of the 4th Amendment withers almost as fast as the shriveled right to be secure against illegal searches.)

But Joseph, you will be astonished to learn, lost. He lost, not because arresting him was legal — it obviously wasn’t — but because the Seventh Circuit Court of Appeals locked the courthouse doors. Joseph, you see, had no “standing” to bring his lawsuit.  “Standing” is another of the many rules engrafted on the federal civil common law that enables federal judges to curtail the right to a trial by jury in civil matters.  They have other arrows in their quivers as well, but “standing” is often used to deprive otherwise worthy litigants of access to federal courthouses.

The Mississippi, Roling Along

The Mississippi, Roling Along

The court locked the courthouse doors against the innocent Joseph in an opinion by the always brilliant, sometimes absurd, Judge Posner (long “o”) about whom we have written before.  Writing for the court, Judge Posner opined that Joseph couldn’t sue because he was not in the group of people protected by the “no-arrest” policy.  The guilty Joshua could have sued, but the innocent Joseph could not, because the “no arrest” policy was designed to protect the scofflaws like Joshua and not the innocent. Joseph was not in the “zone of interest” protected.  (For the lawyers reading, this conclusion is just further evidence of the mischief caused by Palsgraf.)

Joshua Thomas, according to the court, was the primary victim, even though he was never arrested.  Joseph was, “. . . the accidental victim of a policy aimed at protecting a class to which he does not belong.” Judge Posner continued, “Not that it isn’t odd to think that Joshua, the scofflaw, has greater rights than the innocent Joseph.”

But that oddity is not allowed to stand in the way of Judge Posner’s logic which rolls along like the Mississippi; inexorable, irresistible, but not always benignant. Even if the “no-arrest” policy was intended to protect the innocent from being arrested for parking violations, it wouldn’t help Joseph because the United States Supreme Court held just last year that the 4th Amendment does not protect citizens from “reasonable arrests” even if the offense for which the citizen is arrested is not “arrestable.”

How arresting someone for something for which they cannot be arrested can possibly be a “reasonable arrest” is a riddle, wrapped in a mystery, inside an enigma.

But never mind.  Like sheep silently led to the slaughter, (Or, for that matter, sheep swept off a ship into the sea.) bothersome citizens must not be allowed to interrupt the deep, abiding silence of federal courthouses where the judges follow their logic to its inexorable end.

Freedom of Speech, Corporations, and Cats – Part II

September 10, 2009
Justices Ginsburg and Sotomayor

Justices Ginsburg and Sotomayor

Well, I was wrong and am happy to admit it.  For the first time — at least as far as I know — a justice of the United States Supreme Court publicly admitted  that treating corporations like people was an invention of courts and may have been a mistake.  In what was only her second question from the Supreme Court bench, Justice Sotomayor said,

Because what you are suggesting is that the courts who created corporations as persons, gave birth to corporations as persons, and there could be an argument made that that was the Court’s error to start with, not Austin or McConnell, but the fact that the Court imbued a creature of State law with human characteristics.

She was talking to Theodore Olson who was arguing on behalf of one such corporation, which claims to be entitled to exactly the same constitutional right to free speech that you and I have.

And, although they didn’t go as far as Justice Sotomayor, both Justices Stevens and Ginsburg questioned Olson about why corporations should get the same First Amendment treatment as real people. Justice Ginsburg began,

JUSTICE GINSBURG: Mr. Olson, are you taking the position that there is no difference in the First Amendment rights of an individual? A corporation, after all, is not endowed by its creator with inalienable rights. So is there any distinction that Congress could draw between corporations and natural human beings for purposes of campaign finance?

That question occurs at page 4 of the transcript of the oral argument.  By page 7, Olson still had not answered the question and Justice Stevens weighed in,

JUSTICE STEVENS: Mr. Olson — Mr. Olson, would you answer Justice Ginsburg’s question yes or no? Can the — leaving aside foreign investors, can the -can — does the First Amendment permit any distinction between corporate speakers and individual speakers?

The Justices with Various Supernumeraries

The Justices with Various Supernumeraries

Theodore Olson, you should know, is a fine lawyer and one who appears before the Supreme Court regularly.  He is a former Solicitor General of the United States.  He knows how to answer questions for which there are answers.  Instead, he continued to dodge and weave.  Here is the rest of the exchange:

MR. OLSON: I am not — I’m not aware of a case that just –
JUSTICE STEVENS: I am not asking you that. I meant in your view does it permit that distinction?
MR. OLSON: My view is based upon the decisions of this Court and my view would be that unless there is a compelling governmental interest and a narrowly –
JUSTICE STEVENS: But if there is a compelling government — can there be any case in which there is a different treatment of corporations and individuals in your judgment?
MR. OLSON: I would not rule that out, Justice Stevens. I mean, there may be. I can’t imagine all of the infinite varieties of potential problems that might exist, but — but we would eventually come back to the narrow tailoring problem anyway.

Olson never answered the question.

Not that it matters much.  The activists on the Court (Scalia, Thomas, Roberts, and Alitio) will combine with Justice Kennedy to rule that corporations are entitled to the same First Amendment rights that you are.  The fact that you lack the money to buy yourself a congressmen while Fortune 500 companies don’t, will matter not a whit to them.  By a decision of 5-4 the Court is going to rule that no limit can be placed on the ability of a corporation to donate money to political candidates.  That will remain the law until a different Court rules that money and speech are not the same.

You can read the transcript of the argument here or you can listen to it here.



Being a humble, modest person I hardly ever note when some august, prestigious publication takes note of some humble, modest observation I have made.  However, when the Wall Street Journal – days after my post on the subject – also notes Justice Sotomayor’s question and ponders its long term consequences, I am gratified.  If the Wall Street Journal is worried,  there is hope.



We’re on a roll here at the Golden State. Now Steven Colbert is on the train with us.


Still Another Update

The Court ruled exactly as predicted in this post. Here is the blog post about the ruling.


Somehow or the other, my copyright notice appears on the photographs above.  That is wrong.  They are the official photographs of the Supreme Court and no one would ever allow me into the Supreme Court building with a camera!

Freedom of Speech, Corporations, and Cats

September 8, 2009
No. 5 is the useless cat clavicle - Adapted from: An Atlas of Cat Anatomy.  Field - Taylor

No. 5 is the useless cat clavicle - Adapted from: An Atlas of Cat Anatomy. Field - Taylor

The law moves — sometimes forward, often sideways, and frequently backwards — by means of written court decisions.  Theoretically, each decision is based on earlier decisions that supposedly control the result.  Lawyers refer to this as “relying on precedent” and, when counseling clients, use it to predict what will happen if a particular client takes a particular course of action.  Litigating lawyers search for earlier cases that will provide a rule of decision for their current case.  Judges look for precedent either to help them decide a particular case or to justify their decision after they’ve made it.

Thus the common law trudges along.  Justice Holmes once remarked that the process is much like the clavicle bone in cats:

Precedents survive like the clavicle in the cat, long after the use they once served is at an end, and the reason for them has been forgotten, the result of following them must often be failure and confusion. . . .

So it is with the pleasant little fiction that a corporation is a person.  The law, for more than a century now, requires that corporations be treated as though they are persons.  If you ever sit on a jury in a case involving a corporation versus a real person, the judge will command you to treat the corporation just exactly as you would as if it were a living, breathing person.

stell mill

This is nonsense, of course. Corporations don’t breathe, they don’t eat, they don’t love, they don’t cry, and they don’t die.  They live forever and many of them will make more money today than you will make in the rest of your life. Why these financial behemoths with more money and power than most governments should get the same treatment from the law as you may seem a mystery.  (Actually, they get better treatment than you do.  They hire the best lawyers, the best accountants, and the best politicians.  They can fire you any time at all, even though you have spent a lifetime serving them.  They don’t even need a reason to lay off thousands of hard-working people at a time.  And when they do, their stock value usually goes up. We have a death penalty for real people who run seriously afoul of the law, but when did you ever hear of a court passing a death sentence on a corporation?)

trainThe reason for this legal fiction lies in the shadows of the industrial revolution and the Supreme Court’s 19th Century infatuation with railroads.  In what was probably his worst mistake as president, Abraham Lincoln — a railroad lawyer himself — appointed Stephen J. Field to the Supreme Court.  Field, before he went senile, several years before he left the Court, was a powerful, persuasive advocate for the railroads and other industrial corporations.  Field — or maybe it was some other justice, no one knows for sure — ran across an obscure law review article by an obscure and incompetent law professor which cited several old cases from England for the proposition that corporations must be treated as natural persons. But the law professor was wrong.  Those old cases held nothing of the sort; the law professor made it all up.

But that was good enough for Field and the majority of the United States Supreme Court and it remains good enough today. Corporations are people, just like you and me.

Which is why the arguments scheduled for tomorrow in the Supreme Court, in the case ostensibly about the anti-Hillary Clinton campaign movie, are going to be very interesting.  A corporation, formed for no other reason, is going to argue that it should be treated just like real people when it comes to giving money to politicians for their campaigns.  They will say that, if natural people have a constitutional right to free speech, which includes giving money to politicians with whom you agree, they ought to get to do it too.  They will ask the Supreme Court to overturn two precedents which say otherwise and at least four of the judicial activists on the Court (Scalia, Thomas, Alito, and Roberts) are likely to agree.

You can listen to the arguments as soon as they conclude.  We’ll return to this issue after the arguments.

But no one, not a one lawyer nor one Justice, will so much as hint that the very idea of treating corporations just like people is silly.


Read Part II of this post here.

Harlots and the Law

September 4, 2009
Salome by Surenyants

Salome by Surenyants

The story is told — and for all I know, it may be true — that a lawyer who once lost a case in the Supreme Court of the United States asked the Court for a rehearing and actually got one.  Motions for rehearing are seldom granted; courts don’t like to second guess themselves.

The lawyer began his oral argument at the rehearing in which he was asking the Supreme Court to change its collective mind by quoting John the Baptist to the Court.

The lawyer said to the justices, “ I come before you as John the Baptist saying, ‘Repent ye, repent ye.”

That was as far as he got before being interrupted by one of the justices who asked the lawyer, “But surely you are aware of what happened to John the Baptist?”

“Yes,” replied the lawyer, “He lost his head because of a harlot, something I know would never happen to this Court.”

Paris Hilton Goes to Court

September 1, 2009

As we have noted before, judges decide all kinds of stuff.  This week, for instance, the Ninth Circuit Court of Appeals had to decide a case about this greeting card.


The face, for you social recluses out there, is that of a celebrity named Paris Hilton. She sued Hallmark Cards for using her face on that birthday card because, she said, it interferes with her right to her own publicity.  She raised other arcane legal theories as well, but I won’t bore you with those.  If you want to bore yourself, here is the link to the entire 27 page opinion.

Apparently Hilton stars in some television program where she and another rich friend pretend to place themselves in situations for which they are unprepared, due to their pampered upbringing. This pretending gives rise to the moniker, “reality” television, a mystery too deep for plumbing. The birthday card spoofs one such program where she pretended to be a waitress at a Sonic drive-in.  Here are the first three paragraphs of the court’s opinion, written by Judge O’Scannlain, with his tongue firmly planted in his cheek:

We must decide whether California law allows a celebrity to sue a greeting card company for using her image and catchphrase in a birthday card without her permission.

Paris Hilton is a controversial celebrity known for her lifestyle as a flamboyant heiress. As the saying goes, she is “famous for being famous.”

She is also famous for starring in “The Simple Life,” a so called reality television program. The show places her and fellow heiress Nicole Ritchie in situations for which, the audience is to assume, their privileged upbringings have not prepared them. For example, work.